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EMPLOYMENT LAW — 5/4/07

EEOC examines "caregiver discrimination"

Workers who care for children or elderly parents may face discrimination in the workplace, and the Equal Employment Opportunity Commission (EEOC) wants to better understand how the laws the agency enforces could be used to combat such cases of "caregiver discrimination."

Balancing responsibilities. Most workers today must balance work with care-giving responsibilities. In 62 percent of married-couple families, both parents work, according to statistics cited by Heather Boushey, a senior economist with the Center for Economic and Policy Research. Testifying at an April 17, 2007 EEOC meeting, Boushey said of the difficulties of balancing work with other demands, "These issues are not going away." Boushey called on employers to offer family-friendly policies, such as paid sick leave and workplace flexibility.

EEOC Vice Chair Leslie Silverman remarked that many companies do recognize employees' need to balance work and family. "Unfortunately, not all caregivers work in hospitable environments. We hear from caregivers who face barriers, stereotyping and unequal treatment on the job," Silverman said.

Increasing litigation. Suits involving discrimination against pregnant workers, which is related to caregiver discrimination, are on the rise. Pregnancy discrimination charge filings with the EEOC and state and local agencies have increased 45 percent between 1992 and 2006 — from 3,385 to 4,901, testified Elizabeth Grossman, an EEOC regional attorney. Pregnancy discrimination lawsuits filed by the EEOC have risen from six or fewer per year in the 1990s to 32 in 2006.

"Many women are increasingly aware of their rights, and more willing to fight to enforce them," Grossman stated. Additionally, male caregivers appear to be subject to disparate treatment in the workplace, for example, when they are not given the same flexibility as female workers with care-giving responsibilities, Grossman commented.

Protection from FRD. Discrimination against workers based on their obligation to care for children, parents and disabled family members has been dubbed "family responsibility discrimination" (FRD). Congress has not legislated protections for caregivers, so FRD claimants rely on other statutes, such as the Americans with Disabilities Act (ADA), explained Zachary D. Fasman, a partner with Paul Hastings. The ADA prohibits discrimination against individuals based on their association with individuals with disabilities.

At least 17 statutory and common law theories have been used in FRD cases, said Joan C. Williams, a law professor at Hastings College of Law, University of California. Fasman said that in addition to the ADA, FRD cases have relied on Title VII of the Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth Amendment, the Pregnancy Discrimination Act, the Equal Pay Act and the Family and Medical Leave Act.

Noting the lack of federal legislation, Fasman commented, "If there is any legal protection on the federal level for discrimination against employees involved in family-related activities, it arises indirectly from statutes addressed to other issues." To protect against liability, Fasman said, employers should train their managers to avoid gender stereotypes and to ensure that existing leave policies are administered in a gender-neutral manner.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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